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Who Gets Custody of Children When a Divorce is Pending?

One of the biggest concerns during a divorce is who gets final custody of the children, but a more pressing issue is who gets custody while the divorce is pending? While child custody laws do vary a little from state to state, typically child custody during a pending divorce is determined by an emergency order or temporary court order for child custody and support. An experienced child custody lawyer is your best chance of securing custody of your child while a divorce is pending.

 

Emergency Order for Child Custody

An emergency order for child custody is only used during a pending divorce if a parent believes that the other parent is a danger to the child. This order works similarly to a restraining order, for which the parent will need to prove to the court why the other parent should not be allowed contact with the child while the divorce is pending. An emergency order for custody is not used often, and the more common option during a pending divorce is the use of a temporary child custody court order.

 

Temporary Order for Child Custody

A temporary court order for child custody and support dictates what happens to the child or children while a divorce is pending. In many states, temporary custody is awarded to the parent that the children continued to live with after the separation, but the other parent retains physical visitation rights. A temporary custody order can be dictated by the court or decided during mediation between the spouses.

 

Considerations for Temporary Custody

A judge will consider many factors when determining temporary child custody during a pending divorce. Keeping a daily journal, providing photos and video, and listing all of your positive qualities as a parent can help determine custody in your favor. Other considerations the court might make include the following:

  • Job stability
  • Residence stability
  • Psychological and emotional stability
  • Lifestyle and morality
  • Children’s preference
  • Methods of discipline
  • School programs

One final consideration the court takes into account when determining temporary child custody is who the primary parent is for the child. The judge will look at a number of factors when determining the primary parent, so providing a journal of activities, calendar, or other documentation to prove that you are the primary parent can go a long way in being awarded temporary child custody during a pending divorce. Factors for deciding who the primary parent is include:

  • Who feeds and bathes the children
  • Who gets the children ready for school
  • Who takes and picks up the children to school or daycare
  • Who schedules and attends doctor’s appointments,
  • Who attends parent/teacher conferences and extracurricular activities

It is important to note that a temporary child custody order during a pending divorce is not a final determination of custody, nor is it permanent. A temporary order can be modified during the divorce proceedings and a final determination of custody can be different when the divorce is finalized.

 

Get Answers to Your California Family Law Questions

At Kearney | Baker in Pasadena, we represent spouses through all aspects of the dissolution/divorce process. Our partners, Brian A. Baker and Gary W. Kearney, are both Family Law Specialists, as certified by the California State Bar. To schedule a consultation regarding any questions about family law in California, contact one of the family law attorneys at Kearney | Baker today at 626-768-2945.

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